How The Pennsylvania Construction Workplace Misclassification Act Affects Misclassified Workers

Posted by Zachary Zawarski in Employee Misclassification on January 10, 2011 | Comment »

Governor Randell signed the Pennsylvania Construction Workplace Misclassification Act into law, which is about to go into effect February 11, 2011. This act only applies to the misclassification of workers in the construction industry. All other industries would rely on common law tests.

Many contractors misclassify workers as independent contractors rather than employees in order to avoid carrying workers’ compensation and unemployment insurance. For workers who are misclassified as independent contractors, they may be wondering if they can bring a legal action against the employer.

Unfortunately, the Act does not allow private actions. Any violations of the Construction Workplace Misclassification Act could be reported to the Pennsylvania Department of Labor and Industry who would prosecute the case. Penalties includes stiff fines and even jail time. The employer can be liable for up to $1,000 per misclassified employee for the first violation and up to $2,500 per misclassified worker for each subsequent violation.

Employees who report that they are misclassified would be protected from retaliation and whistleblower laws. Any adverse action taken against a person within 90 days of a person reporting a violation created a rebuttable presumption of retaliation. If a worker is terminated for reporting the misclassification, they would then have a claim for a wrongful termination and the employer would then be liable for any loss of income the worker experiences as a result of the termination.

For contractors who conduct business with independent contractors, one of the requirements is that the relationship must be governed by a written contract. Be sure to include a provisions why both parties consider the relationship as an independent contractor relationship. An independent contractor must be a separate business which realizes a profit or loss, has its own location, and provides the essential tools for the job.

If you have been terminated for reporting your employer’s violation of the Act to the Pennsylvania Department of Labor and Industry, please contact me by calling (484) 362-9286.

PA UC Eligibility After Quitting Due To Harassment

Posted by Zachary Zawarski in Unemployment Benefits on January 9, 2011 | Comment »

Generally, employees who voluntarily quit their job are not entitled to PA UC benefits. However, when there are necessary and compelling reasons for quitting your job, you may be eligible to receive UC benefits. In some cases, the argument can be made that the employee was essentially forced to quit their job due to workplace harassment. Therefore, the employee technically didn’t quit, but was forced to resign. This is commonly referred to as a “constructive discharge.”

A constructive discharge occurs when the employer’s behavior is so intolerable that it would cause a person of ordinary sensibilities distress. In other words, the employee must not only prove that they were offended by the employer’s behavior, but that a reasonable person with ordinary sensibilities would be offended. The determination will come down to the level of outrageousness of the conduct, which must be determined on a case-by-case basis.

If the offensive behavior is caused by a co-worker rather than the management of the company, the employee must take additional steps to establish a claim. Under these circumstances, the employee must report the conduct to management and management must fail to take steps to address the problem.

If you have been denied PA UC benefits after quitting due to harassment, please contact me by calling (484) 362-9286 to discuss your claim.

Receiving PA UC Benefits After Quitting Due To Health Reasons

Posted by Zachary Zawarski in Unemployment Benefits on | Comment »

If you voluntarily quit your employment due to health reasons, you may be denied unemployment compensation benefits. If you leave your job for health reasons, you will not be entitled to PA UC benefits unless you are available and able to work elsewhere. Unfortunately, the ability to work is required to receive benefits. However, you may have a claim for workers’ compensation.

In other words, if a particular workplace causes or exacerbates an employee’s health conditions, then the worker can be eligible for PA UC benefits if they have to leave the job due to the conditions. A common example would be exposure to a chemical that causes allergic reactions.

If you feel that you need to leave your job for health reasons, you should talk to your employer about your health problem and explain your inability to perform your job duties. Hopefully, the employer will be able to make accommodations so you are able to continue the employment.

To receive benefits for leaving due to health reasons, the employee must establish (1) there is medical evidence to support that the termination was due to health reasons; (2) they informed their employer of the condition to see if reasonable accommodations could be made; and (3) they are available for alternative work.

What about workplace stress? If stress is being used as a basis for collecting unemployment benefits, the employee must establish that the employer is at fault for bringing about the employee’s work-related stress condition.

If you have been denied PA UC benefits after leaving due to health reasons and feel you are eligible, please contact me by calling (484) 362-9286.

How long do PA UC benefits last?

Posted by Zachary Zawarski in Unemployment Benefits on | Comment »

Most people are eligible to receive Pennsylvania unemployment compensation benefits for 26 weeks.  However, not all employees receive 26 weeks of benefits.  If an employee has not worked enough credit weeks, they will not receive the full 26 weeks of PA UC benefits.

If you have not worked for the employer for at least 16 weeks, you will not be entitled to any unemployment benefits.  If you have worked for the employer for 16 or 17 weeks, you will receive 16 weeks of benefits.  If you have worked for your employer for more than 18 weeks, you will then be entitled to the full 26 weeks of PA UC benefits.

How do the federal unemployment compensation extensions factor in?

In addition to state unemployment compensation programs, the federal government provides Emergency Unemployment Compensation (EUC) benefits. The extended benefits you are eligible for depend on the state you live in and the date you became unemployed.

Federally mandated programs extend unemployment benefits if certain conditions are met.  In some high-unemployment states, benefits can last as long as 99 weeks. In Pennsylvania, if the percentage of jobless workers covered by unemployment insurance reaches a certain level, the program will provide 8-13 more weeks of benefits to workers who qualify. The Pennsylvania Department of Labor has more information on EUC benefits.

2013 Legal Update

Act 6 and Act 60 of 2012 reformed several aspects of Pennsylvania unemployment compensation law to protect the solvency of the Pennsylvania unemployment fund. One of the changes affected the length that unemployment benefits can be collected.

The Act eliminated the fixed duration of unemployment benefits of 16 or 26 weeks and introduced a variable duration — on week of benefits for each “credit week” in the base year, up to a maximum of 26 weeks of benefits.

When does a termination become unlawful?

Posted by Zachary Zawarski in Wrongful Termination on December 27, 2010 | Comment »

I receive calls all of the time from people who believe that have been wrongfully terminated. Unfortunately, the vast majority people who believe that they have been unlawfully terminated end up discovering that they do not have any legal recourse against their employer.

Pennsylvania is an at-will employment state which means that most employees can be terminated for any reason, a bad reason, or no reason at all except in cases of discrimination on the basis of race, color, national origin, sex, religion, or age. Other than discrimination laws, the only way an employee is protected from being terminated is if they have a contract with the employer that states they can only be terminated “for cause.” Additionally, if the employee is represented by a union, additional procedural safeguards may protect the employee from termination and the employee would gain additional rights through their union’s collective bargaining agreement.

When does an unfair termination become unlawful? Only in cases of discrimination or terminations considered against public policy. What is a termination that violates public policy? This is a very rare exception and only occurs when there is a termination that violates clear mandates of public policy. This occurs when an employer asks an employee to do something illegal, the employee refuses to do so, and is then fired. Other examples include “whistleblower” cases when an employee reports a workplace safety violation to an agency and is then terminated for reporting the violation. Another example is when an employee is terminated for serving jury duty. Outside of those examples, it’s extremely rare for a court to conclude that a termination was wrongful if there are no circumstances that indicate unlawful discrimination.

PHRC and EEOC Timelines and Deadlines For Discrimination

Posted by Zachary Zawarski in Employment Discrimination on | Comment »

If you have a claim for employment discrimination on the basis of race, color, national origin, gender, sex, religion, or age, it’s very important to see an attorney who can help you through the entire process since it’s a very lengthy and complicated process. The advice contained below is for informational purposes only and is based on Pennsylvania law. If you have a claim for discrimination, seek the advice of an attorney immediately.

Filing a Claim With the PHRC and EEOC

Before an individual can sue in court for discrimination that occurs in Pennsylvania, they must first pursue administrative remedies. This means that the employee must first file a claim with either the Pennsylvania Human Relations Commission (PHRC) or Equal Employment Opportunity Commission(EEOC). If you file a claim in court without first filing with the PHRC or EEOC, your case will be dismissed.

Employees in Pennsylvania are protected from discrimination under both state and federal law. It’s advised to dually file with both agencies in order to preserve your claim under both PA state and federal law. The PHRC grants employees protections and rights under PA state law, while the EEOC is the administrative agency of the federal government that investigates claims of discrimination under federal law. The purpose of these agencies is to investigate the claim and encourage the parties to reach a resolution of the case through a settlement before the need for litigation in court.

PHRC and EEOC Deadlines

Each agency has different timelines that must be followed or you will risk losing your rights to pursue a claim for discrimination. A claim must be filed with the PHRC within 180 days of the alleged act of discrimination, such as a discharge or denial of a promotion. In order to file a claim with the EEOC, the claim must be filed within 300 days of the alleged act of discrimination. Please note that the EEOC deadline is 180 days, but Pennsylvania state law has extended the deadline to 300 days if the charge involved is covered by a state or local anti-discrimination law.

What if you file a claim with the EEOC on day 181? If you file a claim with the EEOC after the time to file with the PHRC has expired, you lose your right to pursue a claim for discrimination in state court under state law, but you can proceed with the claim through Federal District Court under federal law.

PHRC and EEOC Right to Sue Letter

Once a claim is filed with the EEOC or PHRC, they will then investigate your claim and attempt to foster a negotiation between the employer and employee. In some cases, a settlement can be reached and other times a settlement cannot be reached.

If your case hasn’t been resolved after a reasonable investigation period, you should ask the PHRC or the EEOC for a “right to sue” letter so you can file the complaint in state or federal court. If you never received a right to sue letter, you can proceed to court if your claim has remained open for over one year.

If you have not been represented by an attorney when you filed a claim with the PHRC or EEOC, as soon as you receive your right to sue letter, see an attorney immediately in order to draft the complaint. If you receive a right to sue letter from the EEOC, you only have 90 days to file a complaint in Federal court. However, if you receive a right to sue letter from the PHRC, you have 2 years to file a complaint in State court.

If you have any questions about filing a complaint for discrimination, please contact me by calling (484) 362-9286.